Police allowed to install cameras on private property without warrant

A federal judge has ruled that police officers in Wisconsin did not violate the Fourth Amendment when they secretly installed cameras on private property without judicial approval.

The officers installed the cameras in an open field where they suspected the defendants, Manuel Mendoza and Marco Magana, were growing marijuana. The police eventually obtained a search warrant, but not until after some potentially incriminating images were captured by the cameras. The defendants have asked the judge to suppress all images collected prior to the issuance of the search warrant.

But in a Monday decision first reported by CNET, Judge William Griesbach rejected the request. Instead, he approved the ruling of a magistrate judge that the Fourth Amendment only protected the home and land directly outside of it (known as "curtilage"), not open fields far from any residence.

The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The court ruled that under applicable Supreme Court precedents, "open fields, as distinguished from curtilage, are not 'effects' within the meaning of the Fourth Amendment."

The property in question was heavily wooded, with a locked gate and "no trespassing" signs to notify strangers that they were unwelcome. But the judges found that this did not establish the "reasonable expectation of privacy" required for Fourth Amendment protection. In their view, such a rule would mean that (in the words of a key 1984 Supreme Court precedent) "police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right of privacy."

"The Supreme Court has upheld the use of technology as a substitute for ordinary police surveillance," the judges held. Because it would be legal for the police to enter a private field to collect evidence, they concluded it must also be legal to install cameras there.

But this illustrates the absurdity of automatically allowing the police to automate any surveillance activities they're allowed to do manually. In arguments over warrantless GPS surveillance, for example, the government has insisted that installing a tracking device on a suspect's car is no different than having an officer manually follow the car, an activity that has always been permitted by the Fourth Amendment.

But the police only have the resources to tail a small number of suspects at any one time, and a suspect is likely to notice a car following him 24/7. So allowing the installation of GPS tracking devices dramatically increases the government's practical spying powers even if the formal law hasn't changed. And that, in turn, can diminish the privacy protections that are the whole point of the Fourth Amendment.

The same point applies to the installation of surveillance cameras. The police can't afford to put police officers in the bushes of every suspected marijuana grower. But they can afford to install surveillance cameras in every suspect's back yard. So allowing warrantless camera installation dramatically increases the police's surveillance powers, which ought to attract stricter judicial scrutiny.

Update: Our original story incorrectly suggested that Mendoza or Malaga owned the property in question. As the magistrate judge explained in a footnote:

The government also briefly argues that there was no Fourth Amendment search because neither Mendoza nor Magana owned or leased the Property. The court need not address this argument because: (1) it is arguably underdeveloped; (2) the record does not disclose whether Mendoza or Magana leased the Property; and (3) as set forth below, the motion can be denied on other grounds

Promoted Comments

This, according to the very unfortunate case law precedent of the "Open Field Doctrine", is a "reasonable" ruling, although one I think that post United States v. Jones might have a chance of being overturned, if the defense will appeal and SCOTUS agrees to grant certiorari.

Oliver v. United States established post-Katz that searches open fields do not warrant a 4th Amendment violation because they do not count as a seizure and do not count as an "unreasonable" search.

"[O]pen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields." - Oliver v. U.S., 466 U.S. 170, 179 (1984)

That there were "No Trespassing" signs is irrelevant, Oliver stated, because "No Trespassing" signs do not obstruct a view of the open field. Oliver specifically said that if a physical trespass has occurred, (as had happened in that case), then the defendant should pursue a lawsuit against the officers making the trespass in civil court for trespass, but that the trespass itself didn't warrant the search unconstitutional. Jones makes this extremely interesting, since 5/9 justices agreed that the trespass upon the chattel (his car) is what made the search unconstitutional. A lack of trespass has also been what has made video surveillance cases pass muster, such as California v. Ciraolo (if an officer can legally be in the place of observation [on a plane], it is not an "unreasonable search) and Florida v. Riley (plurality: as long as regulations do not prohibit flight in the observational area (no physical intrusion), search is reasonable).

I'm not holding my breath, but this case may have the ammunition, if properly argued, to overturn a long string of improperly decided "Reasonable Search" cases stemming out of Oliver and the Open Fields Doctrine. Otherwise, the Court has said (and may say on appeal) that on private property that is "open field," not within the very narrow "curtilage" of the home, there is no reasonable expectation of privacy within an open field, and thus no Fourth Amendment violation can occur. In short, the court deciding this case wasn't completely out of sorts. The Supreme Court has said "trespass on a field does not constitute a search." Therefore "putting cameras on a trespassed field" is likewise not a search. The ruling might have been horribly, horribly wrong, but it's still the correct conclusion given the case history.

Really it's up to SCOTUS whether or not this case can or should overturn the Open Fields Doctrine. Jones makes me hopeful. Scalia's majority opinion (5 justices) rekindles the "trespass as a search" consideration that had been but an ember among a suffocating ash of police-positive decisions.

Also, the opinion of the article that "automatically allowing the police to automate any surveillance activities they're allowed to do manually" is "absurd" isn't correct, according to a long line of case history. Kyllo basically says that if the public has access to the technology, it's fair game. Furthermore, this is the argument presented by Alito in the Jones minority opinion, and it doesn't much help us here. Alito conceded that while long term searches were unreasonable based upon the length of time (hearkening an argument that long-term searches obviously abridge the "police resource" make-believe economic limit), short-term researches were inherently reasonable because they were more likely to be expected (i.e. one could reasonably envision a cop tailing you, or setting up a stakeout). Only Sotomayor pondered in dicta whether short-term searches via GPS were reasonable.

In either case, the automation argument just doesn't really apply in this case. Knotts and Kyllo set the outer and inner limits of police investigation automation; so long as the public has access to the technology, and you're not within a Constitutionally protected zone [your house and its curtilage], your activities are fair game without a warrant.

In short, the courts aren't going to go buy the argument that "technological progression gives the cops an unfair advantage." And I can't really blame them. Cars gave cops an unfair advantage -- should they have been relegated to horses? Same with guns -- should the constable only get batons? Society progresses and everyone gets access to technology. I'm not worried about the economic barrier for cops slowly diminishing, so long as we have access to the same technology. Thermal imaging, Stingrays, and surveillance drones? We might have a serious issue there.

But for this case, better to focus on the argument that trespass = unreasonable search. This is how it should be.

How does this square with the "physical trespass" ruling from SCOTUS for the car-based GPS tracking devices that recently came down? Surely the cops were physically trespassing when they entered the property to place cameras.

This isn't any different than satellite or drone photography. This becomes especially true for finding meth labs with IR imaging.

Since the public has largely been complacent regarding those usages, the use of terrestrially based cameras to surveil large swaths of property is virtually a non-story.

The public in general has further given little issue the last few years regarding Google's street view cars and satellite imagery, vastly preferring the conveniences conveyed in exchange for privacy. Heck, even the mortgagers have jumped on board and frequently send camera crews to stand and take pictures at the edge of private property prior to foreclosure.

If you want real change, demand a "no confidence" box on ballots which a majority would disqualify both candidates. The US election process would probably need to start around May, but it would be a lot more interesting.

Except for the part where they trespassed on private property to install the cameras.

I'd rather they do that and the ethics be cut an dry (obviously unethical,) rather than blow a couple million more on every municipality that wants drones so they can do "grey" surveillance. I just prefer when the law and the courts make it quite clear how the government will act unethically and make their actions legal rather than all of the shades of grey garbage.

This isn't any different than satellite or drone photography. This becomes especially true for finding meth labs with IR imaging.

I strongly disagree. This involves the police entering private property to physically install the cameras. That is different from one or many passes from an altitude. I am very anti-drug, but this is an intrusion by the government. If the agencies need more cops to monitor people from a distance... Hire more cops. This is wrong.

The public in general has further given little issue the last few years regarding Google's street view cars and satellite imagery, vastly preferring the conveniences conveyed in exchange for privacy.

I don't see streetview being comparable. They occasionally wander down a driveway, but aside from the occasional oops it's publicly-visible anyway.

I've met plenty of older adults (> 40 years old) as well as sub-rural property owners who have a very different opinion on that. Most of the time it's a "Hey that's my house... wait, hey, that's my house!" moment.

How about we set up cameras and mikes all over all public properties and buildings, and polititcians and public employees ?We own them, pay their wages... And it should be both fun and enlightening. Especially the politicians.

This isn't any different than satellite or drone photography. This becomes especially true for finding meth labs with IR imaging.

I strongly disagree. This involves the police entering private property to physically install the cameras. That is different from one or many passes from an altitude. I am very anti-drug, but this is an intrusion by the government. If the agencies need more cops to monitor people from a distance... Hire more cops. This is wrong.

I'm quite clear in my opinion that both are equally wrong. I think law enforcement should need a warrant in the traditional sense, identifying a specific person and address, before being able to use a drone or even peek at satellite images. The body of the law and public opinion is contrary to this standpoint and as such this is the situation which we are in.

In the case of the cops, they should get the maximum punishment for trespassing since there was a sign posted. Frankly, I'm strongly in favor of mandatory minimums as a whole number multiplier of the normal maximum sentence anytime an on duty police officer violates the law... all the way down to speeding without their lights on.

From someone who doesn't live in the US and only seeing the excerpt from your 4th amendment - what is the actual definition of reasonable and unreasonable? And how different (or similar) is that definition from what the the general public believes it to be?

We should ask big business if they think their fenced in fields are private. They are about the only rights holders left who get protected, they are practically citizens. Or maybe Mendoza should have incorporated.

Some criminals got served. They WERE busted. Got it on tape. But somehow the cops are the bad guys. What if they were raping little girls behind that holy fence with the all powerful keep out signs. Give me a break.

WoW! Hyperbole much? This land was private property. The justification that just cause there is not a home on it means it does not deserve the same rights is ludicrous. So military bases that don't have residents on them should get the same ruling right? How about public lands? Can I go down to the nude beach and just drop a camera on it?

Some criminals got served. They WERE busted. Got it on tape. But somehow the cops are the bad guys. What if they were raping little girls behind that holy fence with the all powerful keep out signs. Give me a break.

The police have a hard job. But we still require them to follow the law. The law they are hired to enforce, and swear to enforce. We let them carry guns and point them at us, we should be holding them to higher standards not lower.

Some criminals got served. They WERE busted. Got it on tape. But somehow the cops are the bad guys. What if they were raping little girls behind that holy fence with the all powerful keep out signs. Give me a break.

What if they weren't doing anything? What if they weren't doing anything illegal? What if they were taking a dump on their own land? What if they were having sex with their wives?

Do the police then have a right to post the videos on youtube? Maybe just release the videos to their friends so they can all be voyeurs?

We know who can straighten out the law makers when they don't do their jobs. The voters.

We don't know how to straighten out voters.

This is just another instance where laws established in a previous century (and before) are completely outdated and outpaced by technology. Now just imagine what next year and the next decade will bring. It's one mess after another these days.

We know who can straighten out the law makers when they don't do their jobs. The voters.

We don't know how to straighten out voters.

This is just another instance where laws established in a previous century (and before) are completely outdated and outpaced by technology. Now just imagine what next year and the next decade will bring. It's one mess after another these days.

Interesting times indeed.

None of this has much to do with technology. Technology is used as an excuse. A hundred years ago, the police officer could have just as easily stood on top of a covered wagon and watched with a telescope. Behavior and ethics are what has changed, technology has just become the scapegoat.

Page 3 notes that the area being surveillanced was not owned nor leased by the defendants (see footnote 5).

Page 4 reference precedent regarding "open fields" and the 4th/5th Amendments. The immediately cited case also deals with pot growing in 1984 and references a prior precedent from 1924 concerning moon shiners. The 1924 judgement states that open field vs home / personal effects is "as old as common law".

How you 'gel' everything being fenced off vs 'open field' is something I have a hard time swallowing, but given the precedent, I can understand the court findings concerning it not being enough to be covered by the 4th Amendment. This particular case doesn't have a fence around the property.

This does beg the question of the rights of land owners. Granted, in a time of immanent domain ... what property rights ?

The public in general has further given little issue the last few years regarding Google's street view cars and satellite imagery, vastly preferring the conveniences conveyed in exchange for privacy.

I don't see streetview being comparable. They occasionally wander down a driveway, but aside from the occasional oops it's publicly-visible anyway.

I've met plenty of older adults (> 40 years old) as well as sub-rural property owners who have a very different opinion on that. Most of the time it's a "Hey that's my house... wait, hey, that's my house!" moment.

Static pictures are much different than live surveillance. If you can see it, you can take a picture of it. But someone can't just come stumbling through your yard taking video footage of things, yet alone leave a camera there pointed at your window.

But the judges found that this did not establish the "reasonable expectation of privacy" required for Fourth Amendment protection. In their view, such a rule would mean that (in the words of a key 1984 Supreme Court precedent) "police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right of privacy."

Here's a novel idea for the law to consider: GET A F'N WARRANT. ALWAYS!!!

Great so I guess the police wont mind us installing video camera on their property, you know, they have no expectation of privacy or expectation of control over other peoples property on their land. No, we wouldn't be charged with something crazy like terrorism or wiretapping or some other thing now would we. In light of this a put cameras on judges and police officers land day should be organized since of course nothing is wrong with it. No this isn't a case of one law for you, another for us is it.

The only threat that exists to the Western world is govt and police terrorism, they harm us every day, not these made up boogymen. I don't see turbaned men putting video cameras on private property all the while beating, arresting, sending to jail and confiscating the property of people video taping things that happen in a public place.

SunnyD wrote:

Quote:

But the judges found that this did not establish the "reasonable expectation of privacy" required for Fourth Amendment protection. In their view, such a rule would mean that (in the words of a key 1984 Supreme Court precedent) "police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right of privacy."

Here's a novel idea for the law to consider: GET A F'N WARRANT. ALWAYS!!!

Exactly, getting a warrant establishes they have business doing what they are doing, if they don't have any business doing what they are doing (a warrant) then why are they doing it, if they say they have business ...then just get a warrant. The fact that they are so hostile to warrants (establishing they have business and probable cause) is an admission that they have no business doing what they are doing.Warrants are already given for just about anything, no questions asked, so it's amazing these incompetent officers have such a problem being bothered to get one so often.

Take this for instance, yes man judge gives the police a warrant to bust into these peoples house, all on the pretext of 5 year old open liquor violation ...was that really necessary? The real reason was becuase a roommate was spotted at the occupy wallstreet protest and the busting in their house was to be used as a terrorism and intimidation tactic, the warrant just being a flimsy excuse but guess what the judge had no problem giving that warrant. When they came in and handcuffed them though they did not ask about the open liquor event 5 years ago, all they talked about was the occupy wall street protests, whether they were going to attend and interrogated them about it.

Page 3 notes that the area being surveillanced was not owned nor leased by the defendants (see footnote 5).

I still stand by my point though that if we tried to do this it would not stand, hence the one law for you another for me I was talking about and the never ending chugging of this train (respect and willingness to get warrants warrants) and related issues down the tracks.

Technology works both ways. Parrot AR drone + high gain wifi antenna + this = lots of perfectly legal fun with the cops. At least until they pass more laws and make it illegal to shine light into cameras.

From someone who doesn't live in the US and only seeing the excerpt from your 4th amendment - what is the actual definition of reasonable and unreasonable? And how different (or similar) is that definition from what the the general public believes it to be?

What is reasonable is up to a judge to decide. There is a well-established mechanism to get a judge to decide in advance: get a search warrant (or wire-tapping warrant or some kind of camera-recording warrant). Hardly a perfect process, since, as evidenced, being a judge doesn't equal being reasonable, yet vastly better than having the police decide. There are exceptions for when the police sees signs of a crime in progress and must handle quickly.

If this ruling stands, then apparently the definition is quite different from what the general public believes it to be. At least I'm fairly sure the general public believes that the police can't install cameras on their property.

[edit:]P.S. It now turns out that while the property was owned by someone, it wasn't owned by the defendants. That rather changes the picture. If you're on someone else's property without permission it's hard to argue that you expected privacy.

We know who can straighten out the law makers when they don't do their jobs. The voters.

We don't know how to straighten out voters.

True, but it doesn't help that we have a terrible voting system. Instead of having multiple winner voting systems, which definitely wouldn't solve all the problems but would help somewhat, we allow the duopoly of politics to continue. I personally won't vote for anyone who isn't willing to change this part, first and foremost. Until we change some of the most basic and systematic flaws it hardly matters who gets voted in. Yes it can be said it's voters' faults that we still have this system but this system is resistant to that kind of change which makes it all the more difficult. So to me that is high priority. Why is it a country of 300 million people (yes I'm aware that not all of those can vote for various reasons) only has 2 options for President? Basically only 2 options for just about any seat.

Edit #2- Seriously, that land could be mine, or yours. This is a violation of our rights, no matter what anybody says. Fuck a judge and his interpretations. If this happened on my land I would NOT be civil in any way, shape or form.

We don't need to watch our backs, we need to watch our front. This is fucking insane.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.